Судья Барак! Лучше уйди сам!
May. 18th, 2006 10:14 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
xaxamСудья Барак! Лучше уйди сам...
He said they also agreed that if the Knesset were to extend the validity of the Citizenship Law in its current format, the court apparently would overturn it.
"As you can see, technically, my view lost, but in substance, there is a very solid majority to my view that the Israeli member of a family has a constitutional right to family unification in Israel with a foreign spouse, and that the statute is discriminatory," Barak wrote Monday in an email that has reached Haaretz.
"I also have a bare majority that the statute is not proportional, and therefore, unconstitutional." Barak sent the email to a friend of his, a law professor at Yale University.
Barak's position is liable to have decisive ramifications regarding the continued legal-judicial conduct related to the Citizenship Law. It is likely to influence whether the government asks the Knesset to extend the law, whether the Knesset would agree to such a request, and whether additional petitions would be submitted against the law should it be extended in two months. If additional petitions are filed in August, Barak, who is slated to retire shortly, will still be on the court.
He refused to comment on the email, saying it was a personal letter.
The High Court ruled 6-5 to reject seven petitions against the amendment to the Citizenship Law, which prevents Palestinians married to Israeli Arabs from becoming Israeli citizens or permanent residents. Barak wanted to overturn the ban, arguing that the law violates the right to equality and family life, which he said were covered by the Basic Law on Human Dignity. He also said the violation was not "proportional," and therefore, unconstitutional. Justice Mishael Cheshin disagreed, and wrote the majority opinion upholding the ban on family unification.
"My dear friend," wrote Barak. "You may be interested in a very important case which was delivered the day before yesterday [Sunday] by my Court... In my opinion, I decided that the right to family life is a constitutional right of the Israeli partner or his/her child. This right includes not just the right to marry, but also the right to live in Israel. I also decided that the statute discriminates against Arabs, since all those who seek family unification from the West Bank are Arabs. As we do not have a special section in our Bill of Rights dealing with family rights or equality, I decided that those rights are part of our right to dignity."
Barak also described the positions of the 10 other judges on the panel.
"The second major opinion was written by my colleague Cheshin," Barak wrote. "He decided that there is no constitutional right for family reunification in Israel, and that even if there is such a right, there is a good justification for its breach, because of security. One judge supported his reasoning. Three judges concurred with me on the violation of the rights, but agreed with Cheshin on the proportionality issue."
Referring to Justice Edmond Levy, Barak wrote: "The eleventh judge agreed with me both on the violation of the rights, and on the missing justification. He thought that individual checking is a less restrictive mean which can achieve the same results as a blank prohibition, and he made several suggestions to this effect. He, however, refused to sign my conclusions that the statute is unconstitutional and void, because of the fact that the statute expires anyway within two months. He said that if the statute is renewed, his remark should be taken into account, and he joined thus to Cheshin's judgment in deciding to dismiss the cases."
Barak also referred to comments Justice Minister Haim Ramon made Monday, in which he said that, as the court president wrote, "if the Parliament will try to enact again the statute without any change, there is a high probability, according to the views of the Court, that the statute will be unconstitutional."
Barak: Citizenship Law will be voided if extended
Ha'Aretz, 18.05.2006. Supreme Court President Aharon Barak wrote in a private letter this week that even though his opinion was voted down in Sunday's High Court of Justice ruling upholding a ban on family unification, most of the other justices agree with his position that the law violates constitutional rights and is not proportional.He said they also agreed that if the Knesset were to extend the validity of the Citizenship Law in its current format, the court apparently would overturn it.
"As you can see, technically, my view lost, but in substance, there is a very solid majority to my view that the Israeli member of a family has a constitutional right to family unification in Israel with a foreign spouse, and that the statute is discriminatory," Barak wrote Monday in an email that has reached Haaretz.
"I also have a bare majority that the statute is not proportional, and therefore, unconstitutional." Barak sent the email to a friend of his, a law professor at Yale University.
Barak's position is liable to have decisive ramifications regarding the continued legal-judicial conduct related to the Citizenship Law. It is likely to influence whether the government asks the Knesset to extend the law, whether the Knesset would agree to such a request, and whether additional petitions would be submitted against the law should it be extended in two months. If additional petitions are filed in August, Barak, who is slated to retire shortly, will still be on the court.
He refused to comment on the email, saying it was a personal letter.
The High Court ruled 6-5 to reject seven petitions against the amendment to the Citizenship Law, which prevents Palestinians married to Israeli Arabs from becoming Israeli citizens or permanent residents. Barak wanted to overturn the ban, arguing that the law violates the right to equality and family life, which he said were covered by the Basic Law on Human Dignity. He also said the violation was not "proportional," and therefore, unconstitutional. Justice Mishael Cheshin disagreed, and wrote the majority opinion upholding the ban on family unification.
"My dear friend," wrote Barak. "You may be interested in a very important case which was delivered the day before yesterday [Sunday] by my Court... In my opinion, I decided that the right to family life is a constitutional right of the Israeli partner or his/her child. This right includes not just the right to marry, but also the right to live in Israel. I also decided that the statute discriminates against Arabs, since all those who seek family unification from the West Bank are Arabs. As we do not have a special section in our Bill of Rights dealing with family rights or equality, I decided that those rights are part of our right to dignity."
Barak also described the positions of the 10 other judges on the panel.
"The second major opinion was written by my colleague Cheshin," Barak wrote. "He decided that there is no constitutional right for family reunification in Israel, and that even if there is such a right, there is a good justification for its breach, because of security. One judge supported his reasoning. Three judges concurred with me on the violation of the rights, but agreed with Cheshin on the proportionality issue."
Referring to Justice Edmond Levy, Barak wrote: "The eleventh judge agreed with me both on the violation of the rights, and on the missing justification. He thought that individual checking is a less restrictive mean which can achieve the same results as a blank prohibition, and he made several suggestions to this effect. He, however, refused to sign my conclusions that the statute is unconstitutional and void, because of the fact that the statute expires anyway within two months. He said that if the statute is renewed, his remark should be taken into account, and he joined thus to Cheshin's judgment in deciding to dismiss the cases."
Barak also referred to comments Justice Minister Haim Ramon made Monday, in which he said that, as the court president wrote, "if the Parliament will try to enact again the statute without any change, there is a high probability, according to the views of the Court, that the statute will be unconstitutional."
